R, R (on the application of) v Secretary of State for the Home Department

A decision under paragraph 346 of HC395 on whether further representations amount to a fresh asylum claim is reviewable on Wednesbury grounds. The reviewing court must not substitute its own view on the merits.

Material which was available, or could reasonably have been obtained and submitted, during the earlier proceedings may be disregarded. Errors by legal representatives generally fall to be attributed to the claimant for this purpose. Although the Secretary of State may arguably retain a discretion in an exceptional case involving compelling fresh material and wholly blameless representation, limited corroborative medical evidence did not make this such a case.

The claimants, Ugandan sisters seeking asylum, applied for judicial review of the Secretary of State’s refusal to treat further representations as fresh asylum claims. Their original appeals had been dismissed without a substantive hearing after neither the claimants nor their solicitors attended a directions hearing. Permission to appeal was refused.

The further representations relied principally on a medical report concerning one claimant. The report was available, or could have been obtained, before the Immigration Appeal Tribunal determined the earlier appeal. The central issues were whether the evidence was unavailable for the purposes of paragraph 346 of HC395, and whether successive solicitors’ alleged negligence created exceptional circumstances requiring reconsideration.

1. The application for judicial review was dismissed. The Secretary of State’s decisions of 20 February and 30 March 2004 were not Wednesbury unreasonable.
2. Paragraph 346 of HC395 required the Secretary of State to consider whether the further representations were sufficiently different to create a realistic prospect of success, disregarding material which was insignificant, incredible, or available when the earlier application was refused or an appeal was determined. The provision derived from R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768.
3. The Secretary of State was entitled to conclude that the medical report was available through the claimants’ solicitors by the time the Immigration Appeal Tribunal determined the earlier appeal on 29 September 2003. It could and should have been obtained and submitted as late material.
4. Under Onibiyo, the paragraph 346 decision was reviewable only on Wednesbury grounds. The court could not substitute its own assessment of whether the representations should be treated as a fresh claim.
5. The general principle from Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, E & R v Secretary of State for the Home Department [2004] QB 1004 and Maqsood v the Special Adjudicator and the Secretary of State [2001] EWHC Admin 1003 was that claimants and their legal representatives are generally treated as a single unit. Fresh evidence cannot ordinarily cure a failure attributable to the claimant or representatives.
6. The court assumed, without deciding, that the Secretary of State might consider representative negligence where compelling or conclusive fresh material plainly established the merits and the claimant was wholly blameless. This medical report supplied only limited corroboration and had marginal relevance to the real issue of future persecution or internal relocation. No exceptional circumstances required departure from paragraph 346.
7. R (Haile) v Immigration Appeal Tribunal [2002] INLR 283 established no contrary principle to E & R. The claimants’ costs were subject to detailed assessment under the Legal Aid Act, and publication was anonymised in the names Maria and Judith R.

First-instance judicial review decision. The judgment records that the claimants’ original appeals were dismissed by an adjudicator on 19 June 2003, and that the Immigration Appeal Tribunal refused permission to appeal on 13 September 2003, promulgating its decision on 29 September 2003.